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COMMONWEALTH v. ROBINSON (01/15/69)

decided: January 15, 1969.

COMMONWEALTH
v.
ROBINSON, APPELLANT



Appeal from judgment of Court of Oyer and Terminer of York County, Jan. T., 1963, No. 26, in case of Commonwealth v. Harvey Robinson.

COUNSEL

Harold N. Fitzkee, Jr., Public Defender, for appellant.

John F. Rahauser, Jr., District Attorney, for Commonwealth, appellee.

Bell, C. J., Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Chief Justice Bell.

Author: Bell

[ 433 Pa. Page 90]

This is an appeal from the Judgment of Sentence of the Court of Oyer and Terminer after the lower Court had denied defendant's motions in arrest of judgment and for a new trial.

Defendant was indicted for murder and manslaughter in the slaying of Marlene Ann Perez on December 22, 1962. He pleaded not guilty, and testified that he struck the victim in the face with his open hand after he found her in bed with Richard Miller, the principal witness for the prosecution. Miller testified that the defendant beat Marlene with his fists and kicked her in the head. The jury returned a verdict of guilty of voluntary manslaughter, and defendant was sentenced to imprisonment in a State Correctional Institution for from six to twelve years. Pursuant to our Opinion in Com. ex rel. Robinson v. Myers, 427 Pa. 104, 233 A.2d 220, the defendant was permitted to file post-trial motions nunc pro tunc in arrest of judgment and for a new trial. After a denial of these motions, defendant took this appeal.

Defendant advances several reasons in support of his motion for a new trial. He first contends that the trial Court erred in admitting into evidence two black-and-white photographs -- one showed the room in which the victim's body was found; the other was a picture of the victim showing the injuries, bruises and marks she sustained. Defendant alleges that the pictures were gruesome and inflammatory to the jury and were

[ 433 Pa. Page 91]

    unnecessary because their contents were adequately described by oral testimony.

Several general principles are well settled: (1) the admission of photographs is largely within the discretion of the trial Judge; (2) even though a photograph may be inflammatory or gruesome, that in itself is not sufficient to exclude a photograph from evidence; (3) if a photograph which is gruesome or inflammatory is admitted, the trial Judge should warn the jury not to allow its shocking nature to inflame their emotions or affect or influence their verdict; and (4) the admission of photographs by the trial Judge or by the lower Court will not be reversed except for a palpable abuse of discretion.

In Commonwealth v. Novak, 395 Pa. 199, 150 A.2d 102, the Court said (page 212): "[I]n the trial of criminal cases photographs of the victim and of the scenes of the crime are admissible to aid the jury in their understanding of the alleged crime, the kind of crime it was, exactly what caused the victim's death and what, if any, connection defendant had with it; however, they are not admissible for the purpose of exciting or inflaming the emotions of the members of the jury."

The value and importance of photographs in many cases, of which the present one is an outstanding example, were pointed out in Commonwealth v. Boden, 399 Pa. 298, 159 A.2d 894 (page 307): "When a defendant pleads not guilty, no one knows whether a crime has been committed or what his defense will be. In such cases, it is especially important to admit photographs of the victim to aid the jury in their understanding of the alleged crime, whether it was accidental or felonious, the kind of crime ...


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